To
prove the content of a writing, recording or photograph, the original writing, recording,
or photograph is required, except as otherwise provided by these rules, by other rules
adopted by the North Dakota supreme court, or by statute.

An original writing, recording, or photograph is required in order to prove its content
unless
these rules, another rule adopted by the North Dakota Supreme Court, or a statute provides
otherwise.

EXPLANATORY NOTE

Rule 1002 was amended, effective____________________.

Rule 1002 is based on Fed.R.Ev. 1002.

Rule 1002 states the rule that "to prove the content of a writing, recording, or
photograph"
the original is required. This rule is a familiar one as applied to writings; it is expanded under
this section to include recordings and photographs. Advisory Committee's Note to Rule
1002, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).

The rule is intended to be one of preference, rather than one of rigid application. The
definitions contained in Rule 1001 and the ensuing Rules 1003-1007 are designed to insure
that the rule operates as an aid in the search for truth and not as a rule of needless exclusion
of evidence.

Perhaps the most persistent problem in applying this rule lies in determining whether the
rule should be applied at all. To phrase this in terms of the present section: When are the
contents of a writing, recording, or photograph sought to be proved?

With respect to writings, there are certain instances in which it is clear that testimony is
given, or a writing utilized, for purposes other than to prove the contents of a writing. For
example, a witness may use a writing to refresh his memory without coming under this rule
(see, e.g., Kemmer v. Sunshine Mutual Ins. Co., 79 N.D. 518, 57 N.W.2d 856 (1953);
and
evidence of payment made may be given without producing the written receipt.
McCormick
on Evidence, § 233 at 564 (2d ed. 1972).

Conversely, where the writing has a legal, operative effect, as in the case of a deed, it must
be produced if its terms are to be proved. For example, where the contents of a notice of tax
sale are in issue, the newspaperdocument containing the notice must
be produced; testimony
as to the contents of the notice will not be admitted. De Nault v. Hoerr, 66 N.D. 82, 262
N.W. 361 (1935).

Thus, theThe test may be said to be one of legal efficacy of the
document in question. And,
although this test has been criticized as one of difficult application, and one producing
questionable results (see, McCormick on Evidence, § 233 (2d ed. 1972)),
it is retained,
but with safeguards which should remove the bases for such criticism. Rule
1003(4)
provides a basis for the non-application of this rule in cases where a writing is not closely
related to a material issue. Rules 611 and 614 allow the trial court to require written
evidence, when available, even though oral testimony would be acceptable under this rule.
See, 5 Weinstein's Evidence Para 1002(12) (1975).

This rule has application to photographs as well as writings, although it is the rare case in
which the contents of a photograph will be in issue. Normally, aA
photograph will often be
introduced to "illustrate" the testimony of a witness who has personally observed that which
is depicted in the photograph. McCormick on Evidence § 214 (2d ed.
1972). In these
cases, this rule does not apply. There are instances, however, such as defamation cases in
which the contents of the photograph are involved and are subject to this rule. Also,
photographs taken by automatic means, such as those used in many banks, will be subject
to the rule requiring production of the original.

Exception to this rule has been made in recognition of the many statutes which direct the
admittance of certified copies of documents as if they were originals. See, e.g., N.D.C.C.
§§ 26-15-04 and 28-23-12. These statutes, and those of similar
import, are left
undisturbed by this rule.

Rule 1002 was amended, effective ______________, in response to the December 1,
2011,
revision of the Federal Rules of Evidence. The language and organization of the rule were
changed to make the rule more easily understood and to make style and terminology
consistent throughout the rules. There is no intent to change any result in any ruling on
evidence admissibility.